Effective This Month – The New York Warehouse Worker Protection Act

In December 2022, New York Governor Kathy Hochul signed the Warehouse Worker Protection Act (“WWPA”) into law, which will take effect on February 19, 2023. Pursuant to the WWPA, covered employers will be required to disclose quotas and work speed data to current and former employees to inform workers about their performance and their rights in the workplace. The WWPA also protects workers from retaliation for exercising their rights under the WWPA.  

Who is Covered Under the WWPA?

The WWPA applies to New York employers with 100 or more employees at a single “warehouse distribution center” or 500 or more employees at one or more “warehouse distribution centers” in the State. When assessing whether the aforementioned employee thresholds are met, employers must take into account both direct and indirect employees. Indirect employees include those who are employed by any third-party agency or independent contractor, as well as those employed by a member of a controlled group of corporations of which the employer is a member, so long as the employer exercises control over wages, hours, or working conditions.

For purposes of the WWPA, a “warehouse distribution center” means an establishment as defined by any of the North American industry classification system (“NAICS”) codes specifically listed in the WWPA.  Significantly, employers that do not use “quotas” or monitor “employee work speed data” (both terms defined below) are exempt from the WWPA requirements.

Employees who receive protection under the WWPA include non-exempt and non-administrative employees who work at warehouse distribution centers and are subject to a “quota” (as defined below). 

Quotas Defined

Under the WWPA, a “quota” constitutes a work standard in which:

  • an employee is assigned or required to perform “at a specified productivity speed; or a quantified number of tasks, or to handle or produce a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period;” or
  • “an employee’s actions are categorized between time performing tasks and not performing tasks, and the employee’s failure to complete a task performance standard or recommendation may have an adverse impact on the employee’s continued employment or the conditions of such employment.”  

Employee Work Speed Data Defined

The WWPA defines “employee work speed data” as “information an employer collects, stores, analyzes, or interprets relating to an individual employees’ performance of a quota, including, but not limited to, quantities of tasks performed, quantities of items or materials handled or produced, rates or speeds of tasks performed, measurements or metrics of employee performance in relation to a quota, and time categorized as performing tasks or not performing tasks.”

Employer Requirements under the WWPA

Upon hire or within 30 days of the effective date of the WWPA, covered employers are required to provide a written description of each quota that applies to each respective employee. The written description must include the number of tasks to be performed or materials to be produced or handled within the defined time period, and any potential adverse employment action that could result from failure to meet the quota. If a quota is changed, the employer must provide an updated version of the written description to each respective employee within two business days of the date of the quota change.

Further, every time an employer takes an adverse employment action against an employee, the employer is required to provide the applicable quota to the respective employee. An employer is prohibited from taking an adverse employment action against an employee for failure to meet a quota that has not been previously disclosed to the employee.

In addition, employers are required to establish, maintain, and preserve contemporaneous and accurate records of the following: “(a) each employee’s own personal work speed data; (b) the aggregated work speed data for similar employees at the same establishment; and (c) the written descriptions of the quota such employee was provided[.]” Employers must maintain and preserve these records throughout the duration of each employee’s period of employment, and make such records available to the New York State Department of Labor (“NYDOL”) upon request. Also, a former employee’s records relating to the last six months of employment must be preserved for no less than three years after the former employee’s last date of employment.

Employee Rights Under the WWPA

Employees are not required to meet quotas that conflict with meal or rest periods or use of bathroom facilities, including reasonable travel time to and from the bathroom. Employers are prohibited from taking adverse employment action against employees for failure to meet a quota that conflicts with employee meal and rest periods.

Current employees have the right to request: (a) a written description of each quota that applies to them; (b) a copy of the employee’s own personal work speed data; and (c) a copy of the prior six months of aggregated work speed data for similar employees at the same workplace. Similarly, former employees have the right to request the same if requested within three years from their last date of employment.

Employers are required to provide requested written descriptions of quotas no later than two business days following the date of receipt of the request. Requested personal work speed data and aggregated work speed data must be provided no later than seven business days following the date of receipt of the request. Employers must provide the requested records to current and former employees free of charge.

Unlawful Retaliation and Enforcement

The WWPA also includes an anti-retaliation provision, which prohibits employers from firing, retaliating, or discriminating against any employee for exercising their rights under the WWPA. If an employer takes an adverse employment action against an employee within 90 days of the employee engaging or attempting to engage in activities protected by the WWPA, such conduct will raise a “rebuttable presumption” that the adverse action violates the WWPA. An employer may rebut this presumption with clear and convincing evidence that: “(a) the action was taken for other permissible reasons; and (b) the engaging or attempting to engage in activities protected by this article was not a motivating factor in the adverse action.”

Employers that violate the WWPA will be subject to civil penalties. The WWPA expressly authorizes the NYDOL and the Attorney General to enforce the WWPA. The NYDOL is also expected to promulgate rules and regulations implementing the new law. Notably, the WWPA does not explicitly authorize a private cause of action by an employee.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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